BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WHITE LAKE SCHOOL DISTRICT
NORTHERN TIER UNISERV COUNCIL
Ms. Carol Nelson, Executive Director, Northern Tier UniServ,
200A South Lake Avenue, P.O.
Box 9, Crandon, Wisconsin 54520-0009, on behalf of the Union.
Mr. Robert W. Burns, Godfrey & Kahn, S.C., Attorneys at
Law, 333 Main Street, P.O.
Box 13067, Green Bay, Wisconsin 54307-3067, on behalf of the District.
According to the terms of the 1995-97 collective bargaining agreement between White
Lake School District (District) and Northern Tier UniServ Council (Association), the parties
requested that the Wisconsin Employment Relations Commission designate a member of its
to hear and resolve a dispute between them regarding the proper interpretation of Article 11
collective bargaining agreement. The Commission designated Sharon A. Gallagher to hear
resolve the dispute. Hearing was scheduled and held on August 25, 1997 at White Lake,
Wisconsin. A stenographic transcript of the proceedings was made and received by
1997. The parties agreed that their initial briefs should be postmarked October 10,
1997 and that
the undersigned should exchange those for the parties. The parties reserved the right to file
briefs within ten working days after their receipt of initial briefs. All documents in this case
received by November 7, 1997 whereupon the record was closed.
The parties were unable to stipulate to an issue for decision herein. However, they
to allow the undersigned to frame the issue based upon the relevant evidence and argument in
case as well as the parties' suggested issues. The Association's suggested issue is as follows:
Did the District violate the collective bargaining agreement when
it failed to credit all teachers
with fifteen days of sick leave at the beginning of each school year? If so, what is the
The District's suggested issue is as follows:
Did the District violate the collective bargaining agreement by
accumulating sick leave to a
maximum of sixty days per teacher? If not, what is the appropriate remedy?
Having considered the parties' suggested issues as well as the relevant evidence and
argument in this case, I find that the following issue should be determined herein:
Did the District violate Article XI or past practice when it
credited teachers with 15 days of
sick leave at the end of the 1996-97 school year and/or failed to notify each teacher of their
accumulated sick leave balances at the beginning of the 1996-97 school year? If so, what is
LEAVES OF ABSENCE
A. Personal Illness: For absences caused by
illness or physical disability of the
teacher, each teacher at the beginning of the school year shall be granted fifteen (15) days
of paid leave under this policy. Unused sick leave will accumulate to a maximum of sixty
days. The teacher shall call in before 7:15 A.M. on the day s/he will be absent.
be given a written accounting of their accumulated sick leave at the beginning of each school
The Board agrees to provide the long term disability insurance benefit (after sixty (60)
days) through the W.E.A. Insurance Trust, Policy Number 683. (No teacher who has
more than sixty (60) days prior to the ratification of the 1985-86 contract agreement shall
of those days by virtue of the implementation of this section.)
. . .
During bargaining for the 1985-86 contract, the Association and the District agreed
teachers who then had accumulated more than sixty days of sick leave prior to the ratification
that contract would not lose any of those days due to the implementation of the language now
contained in Article XI, Section A. Teacher Alan Anderson was among
grandfathered at this time. The remainder of the District's teaching staff who were either
after the 1985-86 contract went into effect or who had not at that time accumulated more
sixty days of sick leave were bound by the general language of Article XI,
In the early 1990's the Association proposed to increase the maximum sick leave
accumulation for all employes from sixty days to seventy-five days. Board of Education
Sidney Kindle stated that the Association had tried to increase the maximum sick leave
accumulation for teachers in the 1980's and that the Board had refused. No change in the
language of Article XI occurred and the Association dropped its proposal to increase
the sick leave
accumulation for teachers who were not grandfathered under the parenthetical material
in Article XI, Section A. Also in the early 1990's when the Association made
the proposal to
increase sick leave accumulation, it also asked that teachers be paid for unused sick leave.
proposal was not agreed to by the Board; and it was ultimately dropped by the Association
much discussion on the subject.
Association Representative Rod Wiedmann stated that the instant grievance was
due to a situation involving former teacher Alan Anderson. Anderson became ill and used
sick leave so that he had less than sixty days of accumulated sick leave prior to the time he
to apply for a long-term disability. As the District's LTD policy required an employe to
sixty consecutive sick leave days off prior to eligibility for LTD, a question arose whether
Anderson would lose pay or whether he would be paid fully prior to going on LTD.
Superintendent Harold Brennan (District Administrator for the past eight years) stated that
Anderson received additional sick leave time because he was subject to the grandfather clause
contained in Article XI, Section A and that had this not been the case, Anderson
would not have
received any additional sick leave days prior to going on LTD. During Brennan's tenure, no
District teacher, unless they are subject to the parenthetical grandfather clause contained in
Article XI, A, has had more than sixty days of accumulated sick leave available
to them at any
Wiedmann believed that the first two sentences of
Article XI, A indicate that teachers who
have sixty days of accumulated sick leave at the end of any school year should receive an
additional fifteen sick leave days at the beginning of the following school year for a total of
seventy-five. Wiedmann believed that Article XI creates two different categories of
those under the grandfather clause who can receive a maximum of seventy-five sick leave
accumulation and those not subject to the grandfather clause of Article XI, A --
and that teachers
not subject to the grandfather clause of Article XI, A should receive up to
sixty sick leave days
accumulation in addition to 15 days of leave for their use each year.
Superintendent Brennan stated that for the eight years he has been with the District,
administered Article XI, A in the same fashion: that if a teacher had sixty sick
accumulated and used fifteen during the year then at the end of each school year, the District
would credit that teacher with another fifteen sick leave days up to a maximum of sixty.
believed that the same result would pertain if one added the fifteen days at the end of the
year or at the beginning of the next school year, as teachers do not work during the Summer
get no sick leave during that time. Teacher contracts are issued in March of each school
On those contracts, the District notifies the teacher of how many unused sick days they have
of the date of that individual teacher contract. Teachers are given no other notification
their accumulated sick leave during the school year.
It is undisputed that the Association has never requested that the District give specific
notification of sick leave accumulation at the beginning of each school year. No grievance
been filed regarding this issue during Brennan's tenure as administrator. If teachers use sick
after the issuance of their individual teacher contract, those days are deducted from the
shown on each teacher's individual teacher contract.
There were twenty teachers in the District during all times relevant hereto. Two
(Frey and Maule) had sixty days of accumulated sick leave as of the issuance of their
teacher contract (issued on March 15, 1996); five other teachers had between fifty-six
fifty-nine days of accumulated sick leave as of the issuance of their individual teacher
on March 15, 1996; and there were two teachers who were hired at the beginning of
school year whose teacher contracts did not show any accumulated sick leave as of the
of their contracts, although they were credited with fifteen days at the end of their first year
teaching (less deductions for any sick leave used). (New teachers receive a notice of their
accumulated sick leave on the next individual teacher contract issued to them in March of
second year of employment.)
District Bookkeeper Linda Perry (who has been in her position for a year and a half)
essentially confirmed Superintendent Brennan's explanation of the District's sick leave
She also stated that she was shown how to administer the accumulation of sick leave in the
by her predecessor and that she has continued to perform her duties of keeping track of sick
usage and accumulations in the same fashion as her predecessor to date.
The Union filed the instant grievance on April 16, 1997. On August 14,
Superintendent Brennan wrote to UniServ Director Carol Nelson in response to an
request regarding this case and stated the following:
. . .
Each school year end, 15 days sick leave is added on to the amount of sick days
unused for that
year, not to exceed 60 total accumulation.
. . .
POSITIONS OF THE PARTIES
The Association argued that the contract language in dispute in this case is clear and
unambiguous. The Association urged that Article XI, Section A, clearly creates two types of
leave: 15 days of current sick leave for use at the start of each school year; and accumulated
leave (unused sick leave at the end of a school year). In this regard, the Union noted that
sick leave can only become accumulated after the lapse of a one year period; and that current
leave must be credited to each employe at the beginning of each school year, per Article XI,
a violation of the contract occurs.
Therefore, the Association contended that the District has not administered
leave properly. On this point, the Association noted that both the District Bookkeeper as
the Superintendent were confused regarding how they should be administering the policy;
District representatives have not recognized the difference between accumulated sick leave
current sick leave days; and that the District has not been crediting teachers with 15 current
of sick leave at the beginning of each school year, as the contract requires. The Association
asserted that the contract clearly shows that employes are to use their current sick leave first
that they can then use accumulated sick leave when their current leave has been exhausted.
Association contended that because the contract makes no distinctions in regard to sick leave
between new teachers and staff teachers, the District is not free to treat these groups
Thus, the Association sought an Award sustaining the grievance and granting affected
fifteen days of current sick leave to be credited retroactively as of the beginning of the school
The District argued that the language of Article XI, Section A is clear. In this
District noted that the contract language states that unused sick leave "will"
accumulate to a
"maximum" of 60 days; that the contract does not use the word "may"; and that
it does not refer
to the number "75" in regard to sick leave accumulation. In addition, the District urged that
evidence regarding teachers who have been "grandfathered" is not relevant to this case. In
District's view, only if the Arbitrator found the language of the contract to be confusing or
ambiguous could she examine past practice and bargaining history regarding sick leave.
In any event, the District argued that should the Arbitrator examine past practice and
bargaining history, that these would prove to be consistent with the District's position herein.
this regard, the District noted that testimony from District Administrator Brennan, District
Bookkeeper Perry, as well as evidence from the 1996-97 teacher contract negotiations and
Association Representative Weidmann all supported the District's view of this case.
In regard to bargaining history, the District also noted that evidence is consistent with
District's position in this case. The District noted that District School Board member Sidney
Kindle stated that the Association had tried to increase the number of accumulated sick days
the parties last negotiated and that the Board, in clear terms, refused to change the language
labor agreement allowing only sixty days of maximum accumulation of sick leave. Thus, the
District urged that the Arbitrator should not allow the Association to achieve by this
what it could not obtain in bargaining, essentially changing the contract without any
quid pro quo
for the change. The District sought denial and dismissal of the grievance in its entirety.
The Association argued that the contract clearly requires the District to credit each
with fifteen days of sick leave at the beginning of each school year. However, the
pointed out that in his August 14, 1997 letter, District Administrator Brennan admitted that
District credits teachers with fifteen days of sick leave at the end of each school year. Thus,
Association noted that the District essentially admitted violating the contract on this point.
The Association argued that the phrase "unused sick leave will accumulate to a
of sixty (60) days" should be read to mean exactly what it states. In other words, the
urged, sick leave days cannot be unused until the end of a particular school year and only at
time could unused sick leave accumulate to a maximum of sixty days. The fact that that the
District has used one system for newly hired teachers while it has applied a different system
sick leave accumulation and distribution to long-time teachers are practices which the
clearly does not address. The Association noted that new teachers as well as veteran teachers
should be given fifteen days of sick leave at the beginning of each year of employment.
a teacher who has been working for several years could have seventy-five total available sick
for use in any particular year if they accumulated sixty unused sick days and were properly
granted (as the contract requires) fifteen days at the beginning of the school year.
The Association argued that the "grandfather clause" in Article XI is not relevant to
case and that the District's arguments thereon should be disregarded. In addition, the
contended that the treatment of Alan Anderson is similarly not pertinent to this case
as Anderson was among the teachers who had more than sixty days of accumulated
prior to the ratification of the 1985-86 contract. Furthermore, the Association asserted that
evidence given by District Bookkeeper Linda Perry should also be given little if any weight
upon the fact that Perry had only worked for the District for one and one-half years at the
of the instant hearing. In any event, the Association argued that where the contract is clear
unambiguous, past practice should not be considered.
Therefore, the Association sought that the grievance be sustained and an award issued
stating that the District had violated the collective bargaining agreement by failing to grant
days of sick leave for use at the beginning of each school year to all members of the
The District urged that the record evidence in this case shows that the District has
consistently applied the sick leave language of Article XI. In this regard, the District noted
District Administrator Brennan's testimony was clear and that a fair reading of the entire
shows the District has consistently complied with the plain language of the contract in Article
Thus, the District took issue with the Association's assertions in its initial brief that District
witnesses were confused regarding how the sick leave accumulation and usage have been
administered in the past.
The District also took issue with the Association's citation and
use of the case Dobb's
House, Inc., 64 LA 643 (1975), stating that this case was distinguishable from the instant
The District further noted that the testimony of District Administrator Brennan as well as
Bookkeeper Perry was unrefuted by the Union; and that Perry also testified that she has
sick leave in the same way that her predecessor did. Therefore, the past practice evidence
that only a maximum accumulation of sixty days was allowed in the past by the District for
years. Furthermore, the District argued, Association witness Weidmann failed to identify
instance in which the District had granted accumulation of sick leave in excess of sixty days
for the case of former teacher Alan Anderson.
The District contended that its long-standing practice of applying the new allotment of
leave days at the end of the school year only up to a maximum of sixty is a simple and
practice and that whether new sick leave days are credited at the end of the school year or
beginning of the next school year is irrelevant. The District urged that the Association's
that the District's procedure and practice regarding Article XI results in implementing two
systems, is an argument which elevates form over substance. In the District's view, the end
is the same for both types of teachers: Both new teachers and experienced teachers will start
school year with at least fifteen days of sick leave, but not more than sixty accumulated days.
District urged that this is the logical application of the contract language which is
supported by past practice and by the "grandfather" language contained in Article XI
bargained to protect prior accumulation beyond sixty days.) Thus, the District urged that the
grievance should be denied and dismissed in its entirety.
The District has implied that the Association should have filed a grievance long ago
regarding its interpretation of Article XI and that because the Association failed to previously
grieve the District's failure to issue notices of sick leave accumulation at the beginning of
school year, the allegation regarding notice is not properly before the Arbitrator in this case.
this regard, I note that the grievance was filed on April 16, 1997 and that it read in relevant
. . .
The District did not grant 15 days of sick leave at the beginning
of the current school year to
employees who had 60 days of accumulated sick leave from prior years.
Article XI, Leaves of Absence, A, C, D, E
1. Grant 15 days sick leave at the beginning of each school
year for all teachers covered by
2. Recalculate sick leave for this year to be added to the
maximum allowed accumulation.
3. Any and all appropriate remedies.
. . .
I note that the grievance asserts a violation of Article XI, Section A. Although
grievance does not specifically seek an order requesting that the District notify teachers of
accumulated sick leave at the beginning of each school year, the grievance does seek "any
appropriate remedies." The District's alleged failure to notify teachers of their accumulated
sick leave balances at the beginning of each school year is the type of violation that
each school year. The instant grievance was filed in early April, 1997 at the same time that
individual teacher contracts were issued by the District containing the sole notice of each
sick leave accumulation balance. In these circumstances, I find the District's arguments in
area unpersuasive and that the grievance is properly before me.
Article XI states that "unused sick leave will accumulate to a maximum of sixty (60)
This provision makes clear that teachers not covered by the parenthetical "grandfather"
Article XI may only accumulate and carry over from year to year up to sixty days of sick
which remains unused at the end of a school year. 1 The contract clearly distinguishes between
unused sick leave which may be accumulated and current sick leave, up to 15 days of which
available for use each year if a teacher becomes ill and requests to be absent from work.
In this regard, I note that although the contract states that each teacher
"shall be" granted
15 days of paid sick leave" at the beginning of the school year (emphasis added), it fails to
how much current sick leave a teacher may receive if a teacher fails to complete his/her
work during the school year. In addition, I note that the Association appears to use the verbs
"granted" and "credited" interchangeably.
Given the silence of the contract on these important points, a deeper analysis of the
used in Article XI is necessary to try to determine the parties' intent. The American
Dictionary (Houghton-Mifflin, 1976), defines "grant" as follows:
1. To allow to have; consent to the fulfillment of: grant a
2. To permit or accord, as a favor or
privilege: grant a kiss. . .
In contrast, to give a person "credit" for something such as sick leave has a
immediate entitlement. In the instant case, Article XI uses the verb "grant" not "credit", to
describe how employes are to receive current sick leave. In my view, there is a significant
difference between the verb "grant" and "credit". The fact that the instant contract uses the
"grant" tends to support a conclusion that although all teachers are to be "granted" 15 days
leave for their use in each school year if they become ill, they must work the entire year
they are credited with a full 15 days of sick leave against which the days they
have used that year
can be deducted, leaving unused sick leave (if any) which can then be accumulated to a
of 60 days.
The District has argued that because the contract lists a maximum accumulation of
sick days, the Association's arguments herein would essentially require a modification of the
contract language to include a maximum of 75 accumulated sick days. I agree. If one were
read the instant contract as requiring that teachers be credited with 15 days of
sick leave at the
beginning of each school year no matter how many days they worked, this would result
in non-grandfathered teachers who had previously accumulated 60 sick days, receiving 75
days of sick
leave up front for their use in a particular year. I do not believe the parties ever intended
teachers to receive such a windfall. 2
As noted above, given the silence of the contract in the important areas of proration
usage, the evidence of past practice and bargaining history proffered by the District becomes
relevant to fill in the contractual blanks. In this regard, I note that Board Member Kindle
(without contradiction) that the Board consistently refused over the years to raise the sick
accumulation amount to 75 days. In addition, there is no dispute that for at least the past
years since Superintendent Brennan has been with the District, the effect of the District's sick
leave procedure has been to credit teachers who completed the school year with 15 days of
leave from which the District then made deductions for sick leave used during that year.
sick leave was then added to any accumulated sick leave, not to exceed 60 days'
any sick leave unused at the end of a year in excess of 60 days was lost. 3 This evidence of past
practice and bargaining history supports my analysis of Article XI -- that the parties intended
a full 15 days of current sick leave should be credited to teachers only upon completion of
school year and that deductions therefrom should then be made, with any remaining amount
over 60 days) then being accumulated.
It is true that under my analysis of the language of Article XI, a teacher who has
the school year, who had previously accumulated 60 sick leave days and who was ill for 15
days and requested sick leave therefor would have the use of 15 days of current sick leave in
school year and still maintain 60 days of accumulated sick leave for his/her future use.
my analysis does not mean that any non-grandfathered teachers will, pursuant to this Award,
allowed to accumulate more than 60 sick days as the contract clearly forbids sick leave
accumulation beyond 60 days.
In all of the circumstances of this case, I believe that the District has properly
Article XI sick leave in accord with past practice and the parties' true intent regarding
with the exception of the District's failure to notify teachers at the beginning of each school
of the amount of their accumulated sick leave. 4
I therefore issue the following
The District did not violate the collective bargaining agreement and past practice
credited teachers with 15 days of current sick leave at the end of the 1996-97 school year.
However, the District violated Article XI when it failed to notify teachers of their
sick leave balance at the beginning of the 1996-97 school year. The District shall issue
corrected notices of accumulated sick leave to all teachers as soon as practicable for the
and 1997-98 school year. In the future, the District shall follow the contract and give all
notification of accumulated sick leave (if any) at the beginning of each school year.
Dated at Oshkosh, Wisconsin this 9th day of January, 1998.
Sharon A. Gallagher /s/
Sharon A. Gallagher, Arbitrator
1. I note that the Alan Anderson case arose and was
apparently settled sometime toward the end
of the 1995-96 school year and that the Anderson case did not involve accumulated sick leave
notification. As such, the Anderson situation is not relevant to this case.
2. Logically and practically, sick leave is a benefit that is
earned by time on the job. It is given
to employes who become ill and request sick leave only upon completion of the necessary
on the job.
3. Contrary to the Association's assertions, the District's
practices effectively treat all teachers
the same for purposes of accumulation of sick leave.
4. The District's practice of listing sick leave
accumulation on teachers' individual contracts for
the coming year is insufficient to give proper and accurate notice as required by the clear
of the contract. As such, that practice should be discontinued.